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Updated: 2 hours 22 min ago

COVID-19 and family law: What every attorney needs to know

4 hours 38 min ago

The COVID-19 pandemic has upended nearly every facet of daily life in the U.S. When Gov. Greg Abbott declared a state of disaster in Texas due to COVID-19, he invoked emergency powers for his administration to control the spread of the virus. In a time of sudden school closures, social distancing, travel restrictions, working from home, and more, family law judges and practitioners have worked swiftly to respond to these changes affecting family law clients and their children.

At the time of this writing, the Texas Supreme Court has enacted seven unprecedented emergency orders affecting all courts in the state of Texas, effective March 13, 2020, and lasting through May 8, 2020, unless otherwise extended by the court. Pursuant to these orders, individual courts are given the authority to modify or suspend deadlines and procedures, allow remote appearances to proceedings (such as by video or phone), consider testimony/evidence offered electronically, conduct proceedings away from its usual location in the county, and take any other reasonable action to avoid exposure to COVID-19.
Additionally, the highest court ordered that courts must not conduct “non-essential” proceedings in person contrary to local, state, or national directive, whichever is most restrictive, regarding maximum group size (currently, the statewide restriction is 10 people). Jury trials are also suspended during this time. Specific to family law cases, the Texas Supreme Court ordered that for purposes of determining a person’s right to possession of and access to a child under a court-ordered schedule, the originally published school calendar shall control in all instances. Further, parties must continue to follow their court-ordered possession schedules (unless they agree otherwise) because the court has held that possession of and access to a child shall not be affected by any shelter-in-place order issued by any governmental entity.
Specific counties and judges have been proactive about creating a unified family law response to this crisis. To see how your county is affected, the State Bar of Texas is maintaining a database of all resources and updates on Texas court closures and orders relating to the COVID-19 pandemic.(1). Additionally, the Texas Children’s Commission has compiled a helpful database of all resources relating to child protective services cases on its website.(2). Most counties have issued orders limiting in-person courtroom settings to only “essential family court matters,” including protective orders, family violence, writs and habeas corpus, CPS matters, and other matters that may be designated by the court at its discretion. Some courts are allowing “non-essential” matters to be heard by submission or a virtual hearing (teleconference or videoconference). Individual judges, too, have gone above and beyond to accommodate the public health by allowing electronic “prove ups” of orders and even suspending business dress code (per the celebrated emergency standing order the 470th Judicial District in Collin County).
The innovative way that courts are handling hearings is ultimately an experiment of forcing courts and litigants to adapt to technology almost overnight. Many courts are turning to social media accounts to advertise new policies, thereby increasing transparency and communication with the bench. Practitioners are working together to help adapt to new electronic tools such as Zoom, Skype, and other virtual platforms. It will be interesting to see what changes stick, or not, after the dust has settled from the crisis. The Texas Judicial Branch has provided guidelines for setting up and managing court hearings via Zoom.(3).
Family law firms are also adapting to the changing landscape. First, for many counties, shelter-in-place orders have eliminated in-person meetings and physical office attendance. As such, lawyers have to communicate with clients remotely and disburse critical information and guidance through alternative mediums. Lawyers have also taken to social media to share court directives and advice helpful to cases. Further, with hearings being conducted remotely, many family lawyers are having to learn how to use Zoom, Skype, and YouTube, and instruct their clients on how to appear for a hearing separate and apart from their lawyer. Additionally, with courts being closed for an indefinite period of time and restrictions being in place for some counties for gatherings, attorneys are turning to electronic means to conduct mediations and arbitrations.
In addition to transforming the way matters are handled in court, the COVID-19 pandemic poses a number of new issues for family law clients and their children, which are considered here:

How is parenting affected by a “shelter-in-place” lockdown?
While there is no statewide “shelter in place” directive at this time, different counties are promulgating individual responses to this ongoing crisis. At the time of this writing, several large counties have issued “shelter in place” orders, including Harris, Dallas, Tarrant, Denton, Hunt, and Bexar counties. The Texas Supreme Court issued guidance on March 24, 2020, in the Seventh Emergency Order Regarding the COVID-19 State of Disaster, ordering that parents must follow their possession and access schedule and that possession of and access to a child is not affected by any shelter in place order. This applies to the entire state and clarifies that unless otherwise agreed, a parent must follow the court ordered possession schedule regardless of his or her individual county’s order.

How is co-parenting affected if a parent is potentially exposed to COVID-19?
This is an area where the Texas Supreme Court has not made any specific rulings or guidance for parents. However, individual counties have guidance and direction on exposure. In Dallas County, if a conservator has reason to believe that he or she has been exposed to COVID-19, that conservator shall notify the other conservator and they shall confer to discuss actions necessary to protect the child’s safety and well-being. In making a decision whether visitation between a parent and a child shall continue, it is best to first confer with the health care provider, if possible, regarding your child and his or her potential exposure to the virus. If you decide that there is reasonable concern for your child’s safety and welfare making visitation impossible, a parent should employ electronic communication and visitation and also resume visitation as soon as possible after self-isolation has ended. Additionally, parents should be prepared to offer and expect makeup time for any missed visitation.
Co-parenting is hard, even in the best of circumstances, and during this time, it is even harder. However, parents should try to be a team in this situation, even if it is difficult. This is not the time to keep a minute accounting of how many overnights the other parent has had or to argue that the current school closures should be treated like summer vacation. The most important priority today is to ensure the safety of your family and the public. Talk through concerns and be open to new arrangements. Attorneys should encourage parents to keep detailed records, including contact with the other parent in writing (by text or email), explaining what the concerns are about the current custody plan in light of exposure and proposing a reasonable solution. While family law is often contentious, a child should have as much consistency and stability with visitation as possible.

Are there long-term guidelines for making sure parents are up to date on remote learning activities for school?
Parents are suddenly having to take on teaching responsibilities in addition to working from home. For divorced parents, it is essential that parents communicate with one another about school activities and distance learning so that they are both ensuring that the child is completing his or her activities as well as possible. Schools and teachers are also adjusting to the shift to remote learning so it is possible that a teacher may only communicate information to one parent, and that parent needs to communicate and document shared information with the other parent. Additionally, as children thrive on routine, parents need to communicate and try to establish a consistent schedule with respect to schooling so that the child is impacted as little as possible going in between homes. While it is unlikely that a court will intervene if one parent is not doing his or her part to fully complete online learning, this is another issue that can later be considered when parents return to court.

Will summer possession still take place?
At this time, extended summer possession is not affected by the COVID-19 pandemic. The Texas Supreme Court guidance orders that possession shall continue pursuant to the court order. However, if travel is still affected by COVID-19 at the time of summer possession, or a stay at place order is in effect, the ability of a parent to travel or take a vacation will obviously be limited.

Does a parent have to pay child support if he or she becomes unemployed?
If a parent loses his or her job and is unable to pay child support, the child support obligation still continues until such time as that parent has filed a petition to modify child support and a judge has ruled on the issue. The filing of a modification is the date that a court may consider for modifying support, so it is imperative that a parent file as soon as possible after losing his or her job. However, even after the petition is filed, the obligation to pay continues until a court makes a ruling, which may be some time from the initial filing. During this in between period, a parent should continue to pay child support, or at the very least, as much as possible, to avoid an enforcement order after the courts reopen and address this issue.
It is stressful for everyone—parents and children alike—to navigate through this pandemic. Resources continue to evolve to help parents and attorneys alike manage this crisis. There are resources available to help parents talk to their children about COVID-19,(4) as well as tips for effective co-parenting. The Association of Family and Conciliation Courts in collaboration with the American Academy of Matrimonial Lawyers has provided seven tips for family law practitioners during this time.(5). Despite the uncertainties of this time, family law attorneys still have the necessary tools to help their clients through their crisis and can adapt and overcome to reach resolution.

AIMEE PINGENOT KEY
is a partner at Goranson Bain Ausley in Dallas, where she practices exclusively in family law. She is certified in family law by the Texas Board of Legal Specialization and is a frequent author and speaker on family law issue across the nation.

LINDSEY OBENHAUS
is an associate attorney at Goranson Bain Ausley in Dallas. She is certified in family law by the Texas Board of Legal Specialization.

1. Coronavirus Court Closure & Court Order Updates, State Bar of Texas Family Law Section, https://www.sbotfam.org/recent-news/court-closures-orders.
2. COVID-19 Resources Related to CPS Cases, Texas Children’s Commission, https://texaschildrenscommission.gov/reports-and-resources/covid-19-resources-related-to-cps-cases.
3. Electronic Hearings With Zoom, Texas Judicial Branch, https://www.txcourts.gov/programs-services/electronic-hearings-with-zoom.
4. Autumn Schoolman, Hey kids, coronavirus has changed everything. Here’s what you need to know., USA Today (Mar. 20, 2020, 9:34 AM), https://www.usatoday.com/in-depth/graphics/2020/03/20/coronavirus-kids-has-changed-everything/2864140001.

5. Kathleen McNamara & Lisa Hall, 7 Tips for Family Law Practitioners in the Midst of the COVID-19 Pandemic, 15 Ass’n of Family and Conciliation Courts eNews 3 (Mar. 2020), https://files.constantcontact.com/6beb60a3701/fb0d830f-d282-4e6c-8f3c-76654770c31d.pdf.

Texas State Law Library provides update on resources available during COVID-19 pandemic

Tue, 03/31/2020 - 15:00

The Texas State Law Library may be closed due to the COVID-19 pandemic but many resources may be accessed online.

The law library has established an online portal for asking questions of the librarians, who remain on hand to answer any questions by phone or email. The “Ask a Librarian” page has instructions on how reference librarians can assist you (including how they are unable) as well as FAQs and self-help resources.

The library’s “Disasters & Emergencies” page has been updated to reflect the latest information pertaining to the COVID-19 pandemic. The page is broken down by national, Texas, and local news resources, including current emergency and disaster locations, what is a “disaster” or “emergency,” who can declare a state of emergency, and emergency preparedness.

Additionally, patrons can access the digital collection, which includes practice guides, legal treatises, and self-help materials that can be borrowed and read in a web browser. The resources are available to all Texans and simply require the creation of a library account online.

Librarians can be contacted by phone at 844-829-2843 or 512-463-1722.

Stories of Recovery: The Wake-up Call

Tue, 03/31/2020 - 12:26

Editor’s note: TLAP offers confidential assistance for lawyers, law students, and judges with substance use or mental health issues. Call TLAP at 1-800-343-8527 (TLAP), text TLAP to 555888, or find more information at tlaphelps.org.

I am a trial lawyer. When I started practice 46 years ago, trial lawyers “were required” to work hard, play hard, and drink hard. I took great pride in not drinking until 5:01 p.m. (Well, except for a few beers with barbecue at lunch on Friday.) As a young lawyer, Johnny Walker, Jack Daniels, and I tried a lot of cases. We won some, lost some, but won our share. Trouble started when Jack Daniels became first chair. A symptom of alcoholism is denial. Say what you will, but you can’t drink until 2 a.m. and bring your A game to court at 9 a.m. I really lost control when Johnny Walker became my senior partner. My life at the office and at home started spinning out of control. But I kept drinking.

I got a wake-up call when I failed a liver test. I quit drinking for a year—really only a month—but it seemed like a year. The next liver test was normal, a high normal, but normal. Realizing that I needed to do something about my drinking, I tried two drinks a night. If you take that route, you should stay out of bars because they only give you one-and-a-half-ounce drinks. You must drink at home, and I suggest the 44-ounce Slurpee cup you can get at any 7-Eleven. As you can imagine, it wasn’t long before I failed another liver test. I went back to not drinking for a month, and it was a miserable month at that. I passed the next liver test with a high borderline normal. This time I tried drinking only on weekends and, of course, special occasions. The definition of “special occasions” quickly expanded from holidays and my birthday to win a trial, lose a trial, do a good job on a deposition, do a bad job on a deposition, do a good job answering interrogatories. I failed the next test.

This time my doctor told me I had two options: (A) stop drinking or (B) die. Wanting to show him I wasn’t a wimp, I said, “If I choose B how long will I live?” His answer stopped me cold, and I vividly remember it to this day: “If you’re lucky, not long.” Stunned, I asked, “What do you mean?” He replied, “Cirrhosis is a horrible way to die, and hopefully it will kill you quick.”

I realized that I could not control my drinking. My only option was to stop completely. I was scared to death I couldn’t stop. I was terrified. What saved me? People who loved me convinced me to get help, and I haven’t had a drink since.

Quitting drinking was the scariest thing I have ever done in my life. First, it was such a huge part of my life that I felt lost and didn’t know what to do with all this newfound time.  Second, I truly believed my career was over. Who would hire a morally defective lawyer who did not have enough self-discipline to control his drinking? Again, people who loved me helped me. I started going to the gym at 5:01 p.m. When I would go to a function where everyone was drinking, people would offer me a drink. When I refused, they would ask, “You aren’t drinking?” I would nervously explain that I had a problem with alcohol. More often than not, the response was, “No kidding!”

To my surprise, my business did not suffer. In fact, I found people and clients admired me for quitting. There is probably not a family in America that has not been adversely affected by drugs or alcohol. I soon found I was a much better lawyer after firing Johnny and Jack.

I have now been sober 35 years. Had I not sought help, I would have lost my practice, lost my family, and probably be dead. If drinking has become a problem in your life, get help. Alcoholism is a progressive disease. If you are an alcoholic, you will stop drinking some day; it is better to be alive when it happens.

 

The Not-So-New World of Remote Depositions

Tue, 03/31/2020 - 12:00

Contrary to popular belief, remote depositions are not a new thing. What is new is the temporary suspension of the requirement that the deposition officer, aka certified shorthand reporter, be in the physical presence of the witness. As COVID-19 keeps us all at home, here are some important tips to remember when conducting a remote deposition.

Sound is everything. If we can’t hear you, we can’t take it down. Most applications allow for attending via audio and video. It is highly recommended that you use your computer or other device to connect for the video and call in with your phone for the audio. It produces better sound and reduces the bandwidth needed. That is important now because almost everyone in nearly every industry is working remotely and using valuable, much-needed bandwidth.

You will obviously need to use a speakerphone or a headset with a built-in microphone. Even though other attendees can see you, you are not being “videotaped,” so don’t worry about what it looks like. If you choose to use a speakerphone and are using your smartphone while at home, please consider purchasing a Bluetooth wireless speaker with a built-in mic. The sound is superior to just talking through your phone’s speaker. There are several options out there; for example, Bose and Jabra are two popular brands. Make sure to get one with a USB cable so it can be plugged in and stay charged throughout the proceeding.

Make sure to have the speakers on your computer muted. There will be feedback if you don’t. And don’t forget to put your phone on do not disturb so you aren’t interrupted with text messages and phone calls. Also mute your phone when you are not speaking. This will prevent disruptions due to paper being rustled, coughs, typing on keyboards, etc.

Internet connection—this is just as important as sound. This is written with the assumption you are attending from home. Check your broadband speed—you can do this by going to speedtest.net. If it’s not fast enough, call your provider and upgrade your service. If you have the capability to connect with an Ethernet cable, that will provide the best quality.

Check your surroundings. If you’re attending from home, find a quiet place where you won’t be interrupted and check what is behind you. Remember, everyone can see it. Some applications allow you to use a virtual background, which is a great way to “camouflage” any clutter or distractions. Also dress professionally. This is still a formal legal proceeding. If you’re in your pajamas or shorts from the waist down and stand up during a break, everyone will see you unless you stop your video feed.

Exhibits—everyone is wondering what to do. There are several ways to manage this. Obviously, the exhibits will have to be scanned in ahead of time. In the deposition setting, you must decide in advance whether to send a set to the reporter only or to the reporter and all other counsel who will be attending.

Ideally for the court reporter, premarking the exhibits is best. It makes it easier for everyone to keep track of what exhibits are being used, even if you don’t use all of the exhibits that you premarked. But this is not a requirement.

If you send PDF files to the reporter and nothing is premarked, you will need to give the reporter time during the proceedings to at least rename the PDF file to the correct exhibit number so he or she can keep track of the exhibits. Some reporters can place an electronic exhibit sticker on a PDF document, but it takes time during the proceedings to do this. Ultimately, everyone must agree that the set of exhibits that the reporter has is the official set.

Talk to your favorite court reporter and/or court-reporting firm about options.

Starting the deposition and swearing in the witness. When you log in to the remote session and are prompted to enter your name, please fill in your full name. The reporter will use this to more easily identify you when you are speaking. This can reduce the number of times the reporter may need to stop for clarification.

Before the witness is sworn, the reporter will likely ask everyone present to identify themselves. Please remember to speak one at a time.

The reporter should verify a witness’ identity prior to beginning the deposition by either asking to see a driver’s license or having counsel confirm the witness’ identity. The reporter will then likely read a statement into the record referring to the First Emergency Order Regarding the COVID-19 State of Disaster § 2(b-c).

The deposition will then proceed as most depositions do. We all know the instruction given to witnesses about not talking at the same time and not interrupting. This is extremely crucial in a remote setting. Many times when two people speak simultaneously in a remote setting, one voice is completely lost and the words are gone forever. Please be patient when the reporter interrupts during these times. He or she is merely trying to protect your record. There will likely be a request for something to be repeated. It’s just the nature of the beast.

Security. If you have any virtual assistant device like an Echo for Alexa or a Google Home Hub, either unplug or mute those devices so they can’t pick up any of the proceedings as they occur. We know they are listening.

Also, once everyone has joined the meeting, have the host lock the meeting to prevent any unwanted guests from joining.

Lastly, test everything before the deposition. Reporting firms are more than happy to do a test run and will help you work out the kinks. Please contact the firm at least several days prior to the scheduled date of the deposition to test everything and become comfortable with this new setting.

Together we can keep legal proceedings moving forward.

RENE’ WHITE MOAREFI
is treasurer of the Texas Deposition Reporters Association. She is a certified shorthand reporter, certified real-time reporter, and registered professional reporter.

Coronavirus Legal News Briefing — March 31, 2020

Tue, 03/31/2020 - 10:55

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Plaintiffs, defense lawyers ask Texas Supreme Court to tweak COVID-19 limitations order — They want the high court to make one statute of limitations rule for the entire state. The coalition in the letter includes presidents of the State Bar of Texas, the bar’s litigation section, and bar associations in Austin, Dallas, Houston and San Antonio. — (Subscription required) — Texas Lawyer

How to practice law remotely and efficiently during the COVID-19 crisis (podcast) — The ABA Journal’s Asked and Answered podcast is sharing information with lawyers about how they can adjust to the world’s current situation—such as having to work from home, whether they want to or not. — ABA Journal

Thousands less: These numbers show how COVID-19 affected Texas courts, lawyers — An analysis of civil filings in Texas state courts shows that the number of filings has dropped steadily each week during the month of March, as the coronavirus has spread across the Lone Star State. (Subscription required) — Texas Lawyer

TLAP to present Remote Well-Being Wednesdays in April — The Texas Lawyers’ Assistance Program’s “Remote Well-Being Wednesdays: A Coronavirus Series” will take place weekly through April 15, offering attorneys a resource for tending to their well-being during the COVID-19 pandemic. — Texas Bar Blog

Pay cuts, layoffs, lower partner distributions part of BigLaw response to COVID-19 impact — The economic impact of the novel coronavirus pandemic is hitting BigLaw. — ABA Journal

Texas begins patrols near Louisiana, but enforcement unclear — Texas extending a mandatory self-quarantine to drivers crossing over from neighboring Louisiana began Monday with few clear signs of how the order was being enforced as traffic moved freely across state lines. — The Associated Press

3 pastors petition state Supreme Court to declare Harris County stay-at-home order unconstitutional — A petition was filed with the Texas Supreme Court on Monday arguing that Harris County’s stay-at-home order, which closed churches and limited worship services to video or teleconference calls, violates the First Amendment. — KPRC – Houston

Civil rights & liberties in the age of COVID-19 (video) — Ryan Brown, partner at Blackburn & Brown in Amarillo, says you should assert your rights when interacting with police. — KVII – Amarillo

Older inmates sue Texas prison system over coronavirus policies and practices — The Texas Department of Criminal Justice’s measures to combat the new coronavirus are insufficient at a geriatric prison, the complaint said. — The Texas Tribune

Opinion: Defending the indigent during COVID-19 and beyond — Zachary Morris has spent almost the past decade advocating and litigating cases for the criminally accused in Texas. — Texas Bar Blog

Judge says US failed to promptly release detained immigrant children from ‘hotbeds for contagion’ — A federal judge in Los Angeles has found that the federal government failed to promptly release immigrant children from detention facilities that are “hotbeds for contagion.” — ABA Journal

Under coronavirus immigration measures, US is expelling border-crossers to Mexico in an average of 96 minutes — The pandemic has allowed the U.S. Border Patrol to implement the kind of rapid-fire deportation system President Donald Trump has long extolled as his preferred approach. — The Texas Tribune

DACA recipients ask Supreme Court to consider their work in fight against coronavirus — Undocumented immigrants who work as health care providers are asking for their efforts fighting the coronavirus to be taken into consideration as the Supreme Court considers the the Trump administration’s bid to phase out the Deferred Action for Childhood Arrivals program. — CNNt

Federal judge temporarily blocks Texas ban on abortions during coronavirus spread — A federal judge in Austin ruled Monday that state officials can’t restrict abortion providers from offering the procedure to their patients. — KUT – Austin

Federal judge stops Dallas from enforcing ordinance that requires paid sick leave — Activists say the decision leaves workers without a much-needed benefit as the coronavirus spreads. — The Dallas Morning News

Anthony R. Chase to co-chair Greater Houston COVID-19 Recovery Fund — Anthony R. Chase, an associate professor of law and business at the University of Houston Law Center, will serve as co-chair on the Greater Houston COVID-19 Recovery Fund. — Texas Bar Blog

California law students push to skip bar exam during pandemic — Dozens of anxious law students flooded an emergency phone meeting of the California Committee of Bar Examiners on Monday to beg for automatic admission to the bar rather than face the uncertainty of a postponed exam. — Courthouse News Service

Law Library of Congress: Ask-A-Librarian is available! — It’s free, it’s available to law professors, law students, and other researchers all around the globe. — Legal Writing Prof blog

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The Series LLC: Debunking the Nightmare

Tue, 03/31/2020 - 08:32

Brief Background and Introduction
As a Texas commercial litigation and business lawyer, and clinical professor of business law, I am consistently advising clients and educating students as to the vast depth and complexities of the Texas Business Organizations Code and Texas Business and Commerce Code. However, business laws, both statutory and common law in nature, have far-reaching effects into many other areas of law such as family law, banking and securities law, and estate planning to name but a few. Likewise, while my cases primarily involve federal and state litigation between business entities, both as plaintiff and defense, I have learned well that the truly illuminated counselor understands the polymathic nature of theoretical business law and how it impacts not only the business-entity clients but their individual equity holders as well.

Narrowing down the topic of this article a bit more, it should not come as a shock to Texas lawyers that the LLC has long surpassed the C-corporation and S-corporation models of the past in many significant ways.(1). This is simply nothing more than the continued evolution of business models and the law, which began as nothing more than a sole proprietorship or general partnership many years ago.

However, as this evolution continues to manifest itself in new and exotic ways Texans are now faced with an interesting, and still novel, concept of choice-of-entity selection: What is a series LLC? And what are the inherent risks of a series LLC? As to the first question proposed above, a series LLC, or SLLC, is conceptually nothing more than a series of subsidiary “members, managers, membership interests, or assets” corralled under a single, parent LLC. (See Tex. Bus. Orgs. Code subch. M, §§ 101.601(a)-b)). As much of U.S. business law history begins, the esoteric coterie within Delaware launched the first version of this concept in 1996.(2). And, of the roughly 14 states who have adopted this type of entity formation,(3) each has its own particular laws governing such an enterprise. While this article will primarily consider SLLCs within Texas, it is worth nothing that California among few other states, while not allowing for a domestic version of the SLLC, will still permit foreign SLLCs to operate as such within their borders. Hence, it is key for business lawyers to check the particular state’s code(s) in which you or your clients intend to operate in this capacity. As to the second question proposed above, the rest of this article will humbly attempt to focus upon the more, foreseeable, likely, and somewhat latent risks as they apply generally to SLLCs within Texas and the U.S. Court of Appeals for the 5th Circuit.

Texas SLLCs in Application
The Statutory Lens. In Texas, SLLCs are codified formally by Tex. Bus. Orgs. Code, subch. M, § 101.601. As such this currently sparse, though direct, code states generally that a “company agreement may establish or provide for … series of members, managers, membership interests, or assets” that have “separate rights, powers, or duties” or “a separate business purpose or investment objective.” Furthermore, the statute provides that an SLLC “may carry on any business, purpose, or activity” that is not generally prohibited by the Texas Business Organizations Code.(4). As to the elephant in the room—enforceability of obligations—the code provides as follows: (1) Debts, liabilities, obligations, etc. of any series shall be enforceable as to that series only; and (2) None of the aforementioned shall be enforceable against the parent LLC, or any other series. (See Tex. Bus. Orgs. Code, Ch. 2, § 101.602). However, there are some formal steps that must be closely complied with in order to invoke the express limited liability. While each is de jure necessary to invoke such limited liability the steps are simple in nature: (1) Records must be properly maintained for each series, separately; (2) the parent LLC’s company agreement must grant both the ability of the parent company to operate series and expressly grant such series their own limited liability protections; and (3) the parent LLC’s certificate of formation must contain an express notice of such limited liability protections.(5). Other than that, the various series are allowed to act and conduct themselves as any other limited liability entity, such as to sue and be sued, contract, sell and hold title, etc.(6). As to the federal aspect we have IRS guidance prescribed within their fairly recent regulations, in that series of an LLC are to be taxes as either a disregard filing entity, a partnership, or a corporation.(7). This verification by a major federal agency only further strengthens the argument, both theoretically and practically, that SLLCs are to be considered prima facie as drafted by the legislatures of the several states.

The Caselaw Lens. As it likely comes as no surprise to the reader, the first question I am always asked with regard to SLLCs is but how do courts view SLLCs? This is the logical next-step inquiry into the nature of any business entity. Yet, with the sparse caselaw on the subject, and many lawyers’ hesitance to recommend the SLLC as a result, this lack of juridical input from the bench has left many lawyers and businesses without this practical tool in their framework. Within Alphonse v. Arch Bay Holdings, LLC,(8) Texas business lawyers have great, historical lines of logic from which to gain valuable insights as to how courts within the 5th Circuit conceptualize the application of the SLLC. In Alphonse, a mortgagor brought suit against a parent LLC, even though the facts at bar indicated the damages arose between Alphonse and a series of the parent LLC. This, of course, is every business lawyer’s greatest fear in this regard—vicarious liability/piercing the veil—which leads them to advise against the SLLC. This line of logical history is created by Alphonse’s volatile procedural history.(9). As to the question of whether or not a series only exists to represent the interests of the parent LLC, the court illustrated its view on this point at being of the fact-based nature.(10) Through the 5th Circuit managed to largely avoid these novel arguments by stating these SLLC issues were “extremely novel, complex and fluid issues of [state] law … [and are] more appropriately addressed to a[state’s] court”, this clear direction to counselors notwithstanding, we are able to glean great insights nonetheless.(11). The court, opining as to whether a parent LLC was merited, states such an argument rests simply upon fact-intensive questions of the relationship between a parent LLC and its series.(12). Ultimately, the courts relied on a two-fold system, (Texas and Louisiana series LLC laws were modeled after the Delaware Code; the 5th Circuit will use this lens for interpretation, although Texas appellate courts and Supreme Court of Texas remain to be seen) of analysis in this regard: (1) Delaware Code(13) and (2) Louisiana State Code.(14). Under the first prong, to wit, the Delaware Code, the court stated “unless otherwise provided in a limited liability company agreement, a protected series shall have the power and capacity to, in its own name, contract, hold title to assets … and sue or be sued.” So the 5th Circuit has held that (1) State law of formation governs the legality and limited liability protections of SLLCs and (2) 5th Circuit courts are likely to draw heavily upon Delaware Code as a guiding muse of intent and purpose. In Texas, though courts have not directly dealt with SLLCs and vicarious liability, respondeat superior, or piercing the corporate veil, at least one recent case(15) considered an SLLC as a separate “person” of the parent LLC, holding that a contract between a plaintiff and a series was valid and enforceable. Finally, the same court recognized the long-held Texas business principles that partnership and company agreements, along with contracts, are to be construed as according to their plain and unambiguous language as such language stands to, prima facie, represent the parties’ intent.(16).

Conclusion
So, where does that leave us as Texas business lawyers? It is very clear from the statutory framework of the Texas Business Organizations Code that different series of LLCs are intended to be treated as an incorporated or duly formed entity, even though the series are not actually required to be registered with the Texas secretary of state. Additionally, it is fairly clear that the highest courts in the 5th Circuit likewise interpret these state codes as written, so much so that our federal courts are hesitant to consider these arguments at all. Likewise, the IRS has for some time now taxed series as separate entities, and therefore does not view them as simply nothing more than subsidiary extensions or DBAs of a parent entity. Thus, the only dark matter left in this regard relates to secondary, though highly important questions of business law. These secondary questions include issues such as (1) How are SLLCs viewed during bankruptcy proceedings?; (2) Can secured or unsecured creditors be barred from collection against an LLC if their claims are against a series, or vice versa?; (3) How will Texas SLLCs be interpreted in foreign jurisdictions?; (4) How do securities laws and regulations, both state and federal, apply to SLLCs?; and (5) The glaring theoretical question regarding SLLCs—if the SLLC is considered a separate entity, without having to register as such with the Texas secretary of state, how can it be viewed as a separate entity given that it is just part of a single, duly registered legal entity?

First, the statutory language regarding SLLCs in Texas is both plain and unambiguous with regard to how the Legislature intended for series to be applied and interpreted, to wit, that while not a separately incorporated entity the series of an LLC are to be treated as separate entities notwithstanding. Second, both Texas courts and the 5th Circuit have likewise continued to hold that partnership or company agreements should be construed as any other written contract, to wit, by utilizing the Four Corners Doctrine.(17) Thus, as to the point of limited liability and piercing the veil it is overwhelmingly likely that a court sitting within the 5th Circuit will find a series is due all applicable limited liability and powers equal to a formally incorporated and formed domestic entity; but, this will be exemplified only if the company agreement(s) and certificate of formation contain the required notices and language, and if the records and books of each series are maintained appropriately and separate from any other series, or the parent LLC itself. With regard to how securities, IRS, and other regulations may apply to SLLC, we already have some guidance from the IRS as aforementioned, and it is highly doubtful that the Texas State Securities Board will venture far, if at all, from the IRS and the Securities and Exchange Commission which have thus far considered SLLCs as equal to any other incorporated limited liability entity, to wit, as a standalone separate legal entity. Therefore, while belt-and-suspenders barristers may be hesitant to dive in headfirst when it comes to trying an SLLC case, this author encourages his fellow Texans to boldly embody the spirit of our Texan forefathers as pioneers of a new and mysterious land and begin establishing SLLCs across this great state and nation.

B. BLAZE TAYLOR

is a shareholder of The Moster Law Firm and operates as chief of civil litigation for the firm. He is also a clinical professor of law at Lubbock Christian University. Taylor’s practice includes complex commercial litigation, intellectual property, business formations and governance, and construction law.

1. See Choice of Entity Update, 13th Annual Adv. Real Estate CLE, State Bar of Texas (2019)(citing Tex. Sec. of State—No. of Domestic For-Prof. C-Corps/S-Corps in 2019 = 366,017; No. of Domestic LLCs in 2019 = 1,042,532).
2. See Del. Code Ann. Tit. 6, §§ 17-218, 18-215.
3. See Ala. Code § 10A-5A-11.01; Del. Code Ann. Tit. 6, §§ 18-215, 805); D.C. Code § 29-802.06; Ill. Comp. Stat. 180/37-40; Ind. Code § 23-18.1; Iowa Code § 489.1201; Kan. Stat. Ann. §§ 17-76, 143; Mo. Ann. State §§ 347.039, -.153, -.186; Mont. Code Ann. §§ 35-8-102, -107, -108, -202, -208, -304, -307, -503, -803, -804, -901, -902; 2018 Neb. Laws L.B. 1121; Nev. Rev. Stat. § 82.296; Okla. Stat. tit. 18 § 2054.4; P.R. Laws Ann. Tit. 14 § 3967; Tenn. Code Ann. § 48-249-309; Tex. Bus. Orgs. Code §§ 101.601, -.622; Utah Code Ann. § 48-3a-1201.
4. See Tex. Bus. Orgs. Code, ch. 2, § 2.002.
5. See Tex. Bus. Orgs. Code, ch. 101, subch. M, § 101.602(b)(1)-(3).
6. See Tex. Bus. Org. Code, Ch. 101, Subch. M, §101.605.
7. See IRS Reg. §§ 301.7701-1.
8. See Alphonse v. Arch Bay Holdings, L.L.C., 548 Fed. Appx. 979, 984 (5th Cir. 2013).
9. See Alphonse v. Arch Bay Holdings, LLC, CIV.A. 12-330, 2013 WL 55911, at *1 (E.D. La. Jan 3, 2013), rev’d sub nom. Alphonse v. Arch Bay Holdings, L.L.C., 548 Fed. Appx. 979 (5th Cir. 2013); Alphonse v. Arch Bay Holdings, L.L.C, 2:12-CV-330, 2014 WL 6674029 (E.D. La. Nov. 24, 2014), aff’d sub nom. Alphonse v. Arch Bay Holdings, L.L.C, 618 Fed. Appx. 765 (5th Cir. 2015).
10. Alphonse v. Arch Bay Holdings at 984 (looking at how management was structured, how disbursements were paid, whether books were kept separately, and how assets were allocated and held).
11. See Alphonse at 2:12-CV-330 (2014).
12. See Alphonse 548 at 979 (2013).
13. Del. Code Ann. tit. 6, § 18-215 (2012).
14. La. Rev. Stat. Ann. § 12:1342.
15. Great Sw. Reg’l Ctr., LLC v. ACSWD, LP, 14-18-00679-CV, 2020 WL 205993, at *10 (Tex. App.—Houston [14th Dist.] Jan. 14, 2020, no pet. h.).
16. Id. at 4-7.
17. See Grt. Sw., WL 205993, at 10 (2020).

Opinion: Defending the indigent during COVID-19 and beyond

Mon, 03/30/2020 - 17:43

At first glance, it looks like the criminal defense-focused solo practitioner has a tough row to plow for the foreseeable future, but in reality this is a valuable opportunity to revamp our practices. I have spent close to a decade focused on practicing in the criminal defense world representing thousands of indigent clients, with a majority of that time being spent in solo and small firm practice. I give this background to convey my experience in indigent defense, how the COVID-19 pandemic has impacted my practice, and how we are preparing for our journey into uncharted territory.

I make my living primarily as a criminal defense trial attorney. This means if I’m not going to court and litigating cases, I’m not providing income for my practice. While I make a living off my hired cases I, like most defense attorneys, keep the lights on with appointed cases. Nearly all defense attorneys will feel the sting of the effects of COVID-19. However, this may be the time that we analyze the current state of indigent defense in Texas.

If you are not aware of fee scheduling on appointed cases, let me catch you up. It’s awfully difficult to make a living unless you are turning and burning defendants like a judicial feedlot or submitting hourly vouchers that are scrutinized and generally cut due to county commissioners’ budget fears.

Currently, I see the average misdemeanor voucher bringing in around $300 a plea, while felony cases are being paid around $500 on average. Keep in mind, a voucher for an appointed case is generally only submitted upon resolution. This has led me to schedule monthly large plea dockets to work through my hired and appointed cases together to maximize time and revenue by spending more time preparing cases in advance of dockets, rather than the day of.

Since mid-March I’ve seen a pattern of courts shutting down all non-essential hearings well into May. Court coordinators and district judges I regularly practice under are doing a great job of trying to conjure up pragmatic solutions to adhere to social distancing while attempting to avoid any violation of constitutional rights for incarcerated individuals, but we don’t have a unified solution yet. We are being told that jails are shutting down visitation to everyone but attorneys and medical staff, but then we as attorneys must weigh the potential consequences of contracting or spreading COVID-19. I have reached out via telephone to my incarcerated clients to explain that I am playing it safe and sheltering in place between my locked office and my house. I then update them on discovery review and my suggested actions on each individual case. It is crucial for attorneys to stay in touch with their clients during this time of uncertainty, especially their indigent clients. Double-check contact information for your clients and verify multiple forms of contact information. The individuals we represent look to us for counsel, and we have an opportunity to rise to the occasion—not only concerning pending legal matters but also on their societal outlook.

Rather than sitting in your house or office waiting for the sky to fall, this is the time to work with the state on reaching desirable plea bargains on your non-triable cases. The general consensus seems to be aimed at clearing the jails of all but violent defendants and flight risks. The state and defense have an interest judicially and economically to negotiate in a reasonable manner.

At this point, we’ve gone over how we get paid on indigent cases, the need to continue working on our indigent clients’ cases, and the shared desire to continue moving forward with dockets. Now, how do we put this in practice and continue to produce income on appointed matters? I believe it’s going to take streamlining, partial vouchering, and implementation of telework in our courtrooms and jails.

First, we must streamline our cases. We have all been guilty at some point of waiting until the day of docket call to attempt resolution. In an ideal world this would not be an issue, but as a practical matter, it occurs when we have too many balls in the air while trying to run a successful business. This is easily avoided by simply putting in the prep work before a docket. With dockets getting moved out for months, there is no excuse besides illness to keep us from being fully prepared to move forward on our clients’ matters. This means you need to get your discovery, view said discovery, communicate with your client, communicate with the state, present options to your client, and in turn prepare for a plea or start filing pre-trial motions. If a resolution through a plea is available for an incarcerated client, email or call the court coordinator to see if it’s feasible to proceed with said plea.

When you have a plan in place before docket call, you can resolve a number of cases in one day and get paid while effectively representing your clients’ interests. This preparation saves you time, your clients’ time, the court’s time, and taxpayers’ dollars. You may be thinking, Why put in the time on appointed cases if I’m not going to be able to voucher until case completion and I have no clue when the next normal docket will be? This leads me to my next suggestion, partial vouchering.

In my experience, I rarely submit partial vouchers on appointed cases. Due to COVID-19, we won’t be able to turn in vouchers regularly like we are used to, thus facilitating the need for partial vouchering. Besides the obvious issues with due process, there may be little incentive for the solo practitioner to work for the foreseeable future on indigent cases without the implementation of partial vouchering. Moving to a monthly accounting or vouchering system could create more reasonable returns on cases and more quality attorneys taking appointed cases. Monthly vouchering, though more time consuming for all involved, would enable judges to track case progress and incentivize attorneys to put in the required time and effort to represent our indigent population. Thus, trimming the fat of ineffective representation and rewarding the zealous advocate. Even with moving to partial vouchering, how can we get pre-trial matters and pleas heard during the pandemic? The answer is cohesive statewide infrastructure for teleworking.

I recently viewed the TexasBarCLE free webcast “Practicing Law in the Shadow of COVID-19” and recommend all practitioners use this free information. In the presentation, Jefferson Fisher explains that this disaster is pushing us into the world of teleworking much earlier than any of us expected. I have often wondered how I could work remotely as a criminal defense trial attorney. The answer is the implementation of teleworking in our jails and courtrooms. The Zoom platform is starting to be used, and it appears to be a viable solution for conducting business while practicing social distancing. Through Zoom-type platforms, we can have group meetings with defense counsel, a prosecutor, a judge, a court reporter, and the defendant without the need for inmate transportation or physical appearance in one location by all parties. I envision a scenario where I send plea paperwork to a jail electronically, the jail presents my client with said paperwork, I have a Zoom meeting with my client going through admonishments, and paperwork is signed and sent electronically to the district attorney’s office to be signed and sent to the clerk’s office. The next step is a teleconference between the clerk and my client and for my client to be sworn in. The clerk then sends the paperwork to the judge, and we conduct a remote plea. This sounds like an arduous process, but once a system is in place, we will have embarked on a new era of court proceedings.

In closing, we are in a fluid environment that could have catastrophic economic and medical implications. However, the solo practitioner that is heavily involved in indigent defense has the opportunity to thrive and enact positive change in this often criticized system.

Zachary Morris has spent almost the past decade advocating and litigating cases for the criminally accused in Texas. He spent just under two years at the Bowie County Public Defender’s Office after graduating from the Texas Tech University School of Law. Morris has been in his current office in Lampasas since 2016 but has represented clients in the greater Austin area, Central Texas, and the Hill Country since 2013.

 

TLAP to present Remote Well-Being Wednesdays in April

Mon, 03/30/2020 - 16:37

The Texas Lawyers’ Assistance Program’s “Remote Well-Being Wednesdays: A Coronavirus Series” will take place weekly through April 15, offering attorneys a resource for tending to their well-being during the COVID-19 pandemic.

The programs will take place from noon to 1 p.m. CDT via Zoom on the following dates.

April 1

“Being at Home Boot Camp”—TLAP professionals Erica Grigg, Shawna Storey-Lovin, LPC, and Chris Ritter will discuss remote living and well-being tips.

April 8

“Recovery During Crisis”—Best-selling author and recovery advocate Brian Cuban will share his story and insight about recovery during this crisis.

April 15

“Staying Healthy, Serene, and Sober During COVID-19”—Laurie Besden, executive director of Lawyers Concerned for Lawyers of Pennsylvania, Inc., and TLAP Director Chris Ritter will take a deeper dive into staying healthy and sober during COVID-19.

To meet for Well-Being Wednesdays at noon, please go here. Go here for TLAP’s collection of well-being resources for remote living.

If you find yourself struggling, please call TLAP at 1-800-343-TLAP (8527) or text TLAP to 555888 for confidential assistance, or visit tlaphelps.org for more information. Follow TLAP on Facebook or Twitter for updates on Well-Being Wednesdays and other events.

Anthony R. Chase to co-chair Greater Houston COVID-19 Recovery Fund

Mon, 03/30/2020 - 10:00

Anthony R. Chase, an associate professor of law and business at the University of Houston Law Center, will serve as co-chair on the Greater Houston COVID-19 Recovery Fund.

The fund, established by United Way of Greater Houston and the Greater Houston Community Foundation, received a lead gift from the Houston Endowment and will focus on a four-county area, including Harris County.

“Our primary goal is to make sure the most vulnerable in our community affected by COVID-19 have access to food, health care, shelter, and other basic necessities to sustain them in this crisis,” Chase said in a press release.

Chase has taught at law center since 1990 and was awarded tenure in 1995. He teaches contracts, entrepreneurship, communications law, and race and American law.

The fund received endorsements from Harris County Judge Lina Hidalgo and Houston Mayor Sylvester Turner. Jamey Rootes, president of the Houston Texans, will also serve as co-chair.

For more information, go to greaterhoustonrecovery.org.

Coronavirus Legal News Briefing — March 30, 2020

Mon, 03/30/2020 - 09:46

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

 

State Bar coronavirus update: travel authorization for lawyers, Zoom resources, and free CLE — State Bar of Texas President Randy Sorrels and Executive Director Trey Apffel sent the following message to members on Friday. — Texas Bar Blog

Judicial Branch posts YouTube channel directory — The Texas Judicial Branch published a YouTube channel directory listing of courts convening via Zoom. — Texas Bar Blog

Law firms and bar associations provide resources for coronavirus and opportunities to help — Law firms and bar associations across the state are coming together to provide up-to-date information about COVID-19 and to provide help for those affected by the pandemic. — Texas Bar Blog

Billable hour expectations remain the same, though work volume is ‘trending lower,’ survey says — Ninety-six percent of lawyers and legal staff members who responded to an online survey said their workplaces had announced a move to remote work by March 24. — ABA Journal

Texas to require 14-day quarantine for all travelers from Louisiana, add same restrictions for fliers from other hot spots — Atlanta, Chicago, Detroit, Miami, California and Washington state also join the 14-day quarantine list. — The Dallas Morning News

As local officials shrink jail populations due to coronavirus, Abbott blocks release of some inmates who can’t pay bail — Abbott’s order bans release without paying bail for inmates who are accused of or have been convicted in the past of violent offenses. Defendants with cash could still walk free. — The Texas Tribune

Virus could spur avalanche of tort and employment litigation — The insurance industry is bracing for a tidal wave of claims related to the Covid-19 outbreak, and experts say the new viral disease puts claimants — and the industry — in uncharted waters. — Courthouse News Service

Pro bono lawyers face new world of remote work due to virus — The coronavirus pandemic is upending how attorneys routinely interact with pro bono clients, making it rare or impossible to meet face-to-face in legal clinics, courtrooms, and prisons. — Bloomberg Law

For Big Law, is COVID-19 the great recession all over again? (podcast) — Keith Wetmore, former chairman at Morrison & Foerster, and Bill Brandt, who has helped handle workouts and restructurings for nearly 40 law firms, had big roles during the 2008 recession. Here’s their perspective on the major challenges law firms are facing now. — Law.com

Cybersecurity lawyer who flagged the WHO hack warns of ‘massive’ remote work risks (audio) — Cybersecurity experts warn that those remote setups invite new hacking risks. — NPR

Decision about releasing July bar exam materials will come in May, NCBE says — The National Conference of Bar Examiners, which develops and produces the attorney licensing tests used by most U.S. jurisdictions, will announce in early May whether its tests will be released for the July bar exam. — ABA Journal

Commentary: Execution of legal documents and COVID-19 — With the COVID-19 Virus and Emergency Orders in place, one might ask, “Is there a provision for relaxing the requirement that documents be executed before a Notary Public?” — The Huntsville Item

Austin company looking to dock paychecks for those receiving stimulus checks (video) — Austin labor attorney Austin Kaplan said he believes the company would be in violation of that law if it docked some paychecks to the amount described in the agreement. — KXAN – Austin

The stimulus check won’t be in the mail for Americans who owe child support (video) — But back taxes or late student loan payments don’t disqualify people from getting the full amount they’re eligible for. — NBC News

Out of sight, child abuse in Texas thought to be on the rise — Families are stuck at home, confronting stress and fear. And with many schools and day care centers shuttered, child welfare workers can’t rely on teachers to help detect abuse. — The Texas Tribune

The novel coronavirus is leaving foster children with nowhere to go — The foster care system, built on frequent movements of children from one home to another and regular in-person supervision, has been especially wracked with confusion and dread by the coronavirus crisis. — ABA Journal

Evictions in Texas are halted, but what happens to renters when the suspension lifts? — Most states give tenants the right to make good on missed rent payments before an eviction court date, but that’s a protection Texans don’t have, Texas Tenants’ Union Executive Director Sandy Rollins said. — The Dallas Morning News

Texas’ Attorney General says cities and counties can’t restrict gun sales under emergency orders — Gun sales can continue even as cities and counties curb nonessential business in light of COVID-19, Texas Attorney General Ken Paxton said. — Houston Public Media

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

TYLA Director Spotlight: Ryan V. Cox

Sat, 03/28/2020 - 23:01

Editor’s Note: In this blog series, we are getting to know the members of the Texas Young Lawyers Association Board of Directors. TYLA, commonly called the “public service arm” of the State Bar of Texas, works to facilitate the administration of justice, foster respect for the law, and advance the role of the legal profession in serving the public. All TYLA programs are accomplished through the volunteer efforts of its board and committee members, with the cooperation of local affiliate young lawyers associations. Learn more at tyla.org.

Name: Ryan V. Cox

Firm: Texas Civil Rights Project

Area of Law You Practice: Voting Rights/Civil Litigation

Position Held in TYLA: District 18, Place 2 Director; Co-Chair of the Local Affiliates Committee

How did you get involved in bar service? I first got involved as a volunteer on events with my local affiliate—San Antonio Young Lawyers Association—before spending seven years on the SAYLA board, including as president from 2017 to 2018.

What is your favorite TYLA project and why? My favorite TYLA projects are those that involve direct interactions with our members and local affiliates. This year, our Roadshows are bringing TYLA programs to a dozen underserved areas of the state.

What tips can you give to other attorneys to manage stress? Stress is a part of this job, and we have to come up with healthy ways to manage it. The most important thing in my view is to talk to supervisors about capacity and not overcommitting.

What do you do in your spare time? I am kind of an amateur bibliophile—I love to visit new bookstores whenever I travel and look for hidden gems for my home library.

What is one thing most people don’t know about you? Most people don’t know that I’ve lived and worked all over the state, from my hometown in Corpus Christi to Victoria, Waco, Austin, McAllen, Dallas, and Houston before settling in San Antonio.

Law firms and bar associations provide resources for coronavirus and opportunities to help

Fri, 03/27/2020 - 15:43

Law firms and bar associations across the state are coming together to provide up-to-date information about COVID-19 and to provide help for those affected by the pandemic.

The Dorothy Butler Law Firm in Dripping Springs is doing pro bono work to help small business owners navigate the Small Business Association Disaster Loan applications. The firm has helped about 28 small businesses up to the time of this blog post. Butler said the firm will also be assisting with unemployment benefits for self-employed persons after the Coronavirus Relief Bill takes effect.

The Dallas Bar Association Community Involvement Committee is teaming up with Minnie’s Food Pantry for a virtual food drive. Items for donation can be purchased on the food pantry’s Amazon page.

Chelsie Spencer, co-chair of the Community Involvement Committee, said members have been assisting the food pantry by helping to set up the Amazon wish list of desired items. Spencer said Minnie’s Food Pantry usually receives three to six trucks of food from grocery stores but only received a single, printer-size box last week.

Spencer said the committee is also seeking to assist Dallas Life and senior centers. She said organizations really need help right now with packaging and processing. Attorneys can also volunteer to help organizations to set up online projects.

The Dallas Association of Young Lawyers Elder Law Committee has “adopted” a senior living facility to help during the COVID-19 pandemic. DAYL President Justin R. Gobert said attorneys can assist two ways: by donating products to the living facility and by having parents ask their children to write letters and make drawings for residents, staff members, and nurses.

Wish list items can be ordered through Amazon and addressed to Simpson Place Skilled Nursing Facility & Simpson Place ALF, c/o O’Bryan Dyson, Activity Director, 3922 Simpson St., Dallas 75246. DAYL is requesting that those sending letters or drawings fill out information in the letter log or send an email to Alexandra@dallasprobate.com. Templates for letters are also available online. Letters and drawings can be addressed to the same location as wish list deliveries.

DLA Piper has launched its Coronavirus Resource Center that includes the latest developments and recommendations from the Centers for Disease Control, the World Health Organization, and other government entities worldwide. The resource center has information to guide clients, including insights and webinars, through the ever-changing landscape of the COVID-19 pandemic.

Materials on the resource center cover topics including corporate governance, disclosure, and risk management; finance, restructuring, and transactions; government and regulatory; insurance, real estate, and commercial contracts; supply chain, manufacturing, and distribution; and workforce and employment.

If your law firm or bar association offers resources for the COVID-19 pandemic, email them to tbj@texasbar.com.

State Bar coronavirus update: travel authorization for lawyers, Zoom resources, and free CLE

Fri, 03/27/2020 - 13:36

Editor’s Note: State Bar of Texas President Randy Sorrels and Executive Director Trey Apffel sent the following message to members on Friday.

We hope this message finds you safe and well. We are writing to share the latest updates related to the COVID-19 pandemic.

“Stay Home, Stay Safe” Orders and Travel Authorization for Lawyers

Many Texas cities and counties have issued “stay home, stay safe” orders in response to the pandemic. The State Bar is collecting the orders as a service to members and the public. It’s important to note that these orders generally provide exceptions for essential services, including the provision of legal services.

To provide guidance on these orders, the Office of Court Administration (OCA) issued a Travel Authorization letter on March 26 for attorneys and staff. It states that as the need for legal services increases during the pandemic, Texas lawyers should lead by example with telework, alternatives to in-person meetings, and social distancing, but that they also must be permitted to practice law during local stay-at-home orders and other restrictions on travel and business practices—as long as every effort is made to avoid risks to the public health. Read the letter . The OCA released a similar travel authorization letter for judges, clerks, and their staff. Read that letter .

To read all of the court operations guidance released by the OCA on Thursday, click .

Videoconference Proceedings and Resources

The OCA is providing judges the ability to stream and host court proceedings via Zoom and YouTube. Only State of Texas judges are eligible for access to the OCA-provided Zoom accounts. To request access or inquire about a previous request please contact: . For more information and an OCA list of resources including Zoom 101, setup help, meeting controls, and other tips, go . For a list of court YouTube channels, click .

Alternative Service by Email

The OCA also advises that because of uncertainty regarding the feasibility of accessing documents delivered by mail, commercial delivery service, fax, or such other similar methods during the COVID-19 pandemic—particularly as shelter-in-place orders take effect and large numbers of people are working from home—email service should be used, whenever feasible, as an additional or alternative method of service. Courts are also advised to use email as an additional or alternative method of notifying parties of orders, judgments, and the like, when possible.

Free CLE and MCLE Deadline Extensions

The State Bar is currently offering 5.5 hours of free CLE on the , including two recent webcasts related to the coronavirus: “Practicing Law in the Shadow of COVID-19” and “Benefits and Challenges of Invoking Force Majeure Clauses in the Age of the Coronavirus.” For attorneys in financial need who require additional CLE, are available for online classes. Remember, in Texas it is permissible for lawyers to complete all 15 hours of required continuing legal education through online learning. There is no in-person CLE requirement.

Also, as we previously reported, the State Bar has granted automatic 60-day extensions to attorneys reaching their MCLE compliance deadlines in March, April, or May. Attorneys who missed compliance deadlines in January or February received an automatic 60-day extension to prevent the assessment of further fees. Attorneys subject to suspension for failing to comply with MCLE requirements in November or December received an additional one-month extension. Please contact the MCLE Department at 800-204-2222, ext. 1806, or  if you have questions about the extensions or MCLE compliance requirements.

State Bar Operations Continue Remotely

We are pleased to report that the State Bar is fully operational with the exception of in-person meetings, which have been canceled, postponed, or moved online through at least May 10. In an effort to minimize the potential spread of the coronavirus, all State Bar employees are now working remotely, while State Bar offices remain closed. The and April 17 Board of Directors meeting will be held by videoconference pursuant to Gov. Greg Abbott’s March 16 order temporarily suspending certain open meetings provisions. These will remain open meetings with public participation welcome.

Student Education Resources

We know many of you are not only trying to practice law remotely, but you’re also trying to educate your children while their schools are closed. For anyone looking for resources to use, we suggest the Texas Law-Related Education website at . Free resources are available for all grade levels.

Well-being Resources

The Texas Lawyers’ Assistance Program professionals have created a webpage full of resources to assist the attorneys, law students, and families who may be isolated and struggling with a mental health issue or needing recovery support. You can review the resources at .

The State Bar of Texas is here to help ensure the administration of the legal system continues and that Texas lawyers have the tools and guidance they need to carry on their practices throughout this crisis. We will continue to post the latest updates online at . As always, your questions, comments, and ideas are welcome.

Sincerely,

Randy Sorrels, President

Trey Apffel, Executive Director

How Texas employers should respond to COVID-19

Fri, 03/27/2020 - 11:31

Businesses all over the country have been heavily impacted by emergency public health measures, and many employers do not know how to navigate these quickly changing circumstances. Does current employment law or OSHA offer guidance for pandemic responses? What are employers’ responsibilities to their employees?

On the latest episode of the State Bar of Texas Podcast, host Rocky Dhir welcomes Houston labor and employment lawyer Teresa Valderrama to help answer these questions through a discussion about what employers need to know about how existing and newly enacted employment laws interact with the COVID-19 crisis. Listen here.

Judicial Branch posts YouTube channel directory

Fri, 03/27/2020 - 10:00

The Texas Judicial Branch published a YouTube channel directory listing of courts convening via Zoom.

Court channels are listed in order of the surname of the presiding judge.

To view the current list, go to txcourts.gov/programs-services/electronic-hearings-with-zoom/youtube-channel-directory/.

Coronavirus Legal News Briefing — March 27, 2020

Fri, 03/27/2020 - 09:52

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Texas Bar executive committee approves COVID-19 emergency resolution at historic remote meeting — The State Bar of Texas’ executive committee on Thursday approved a resolution granting Executive Director Trey Apffel with more authority to respond quickly to the COVID-19 crisis. (Subscription required) — Texas Lawyer

Office of Court Administration announces travel authorization for Texas attorneys and staff under stay-at-home orders — Texas lawyers should lead by example with telework, alternatives to in-person meetings, and social distancing but also must be permitted to practice law free from local stay-at-home orders, according to the Office of Court Administration. — Texas Bar Blog

Judicial Branch posts YouTube channel directory — The Texas Judicial Branch published a YouTube channel directory listing of courts convening via Zoom. — Texas Bar Blog

How can law firms stay afloat through the novel coronavirus crisis? — When it comes to figuring out what to do with your law firm in the midst of the COVID-19 pandemic, there are two things lawyers should be thinking about: Who has legal needs and an ability to pay. — ABA Journal

While jury duty is suspended for weeks, some court proceedings still must go on (audio) — Harris County District Clerk Marilyn Burgess explains how the COVID-19 outbreak is affecting the legal system. — Houston Public Media

Gov. Greg Abbott orders air travelers from New Orleans and around New York to self-quarantine — The order aligns Texas with federal guidance announced Wednesday that aims to contain the spread of the virus outside New York, which has become the epicenter of the outbreak in the United States. — The Texas Tribune

COVID-19 stimulus bill includes more than $1B for criminal justice needs — The $2 trillion COVID-19 stimulus bill passed by the Senate on Wednesday includes more than $1 billion for criminal justice needs, including protective gear for prisons and teleconferencing equipment for the federal judiciary. — ABA Journal

Texas small business gets a lifeline: Up to $10 million with no collateral and loan forgiveness — By holding on to employees, companies can get two months of payroll, rent and other costs through the federal relief package. — The Dallas Morning News

Is Cabela’s an “essential” business? Texas counties differ on who should work during shelter in place — The rules differ from county to county, and many employees are confused about why they’re being called in to work. — The Texas Tribune

Law firms are considered essential businesses in some states amid the coronavirus — Some states, including Illinois and Indiana, have labeled lawyers essential workers who can still go into their offices amid stay-at-home orders aimed at halting the spread of the coronavirus. — ABA Journal

Attorneys and advocacy groups adapt for domestic violence survivors amid COVID-19 pandemic — Abusers often use email, social media and cellphones to victimize their partners and monitor their movements. Because of the coronavirus pandemic, attorneys and courts are finding new ways to use technology to keep victims safe. — ABA Journal

Price-gouging allegation leaves 750,000 face masks in limbo — The state of Texas sued a Houston auctioneer on Thursday after halting an auction of 750,000 medical-grade and N95 face masks, alleging price gouging. — The Associated Press

Tougher ID requirements for domestic flights postponed to 2021 — If you don’t already have a REAL ID-compliant drivers license or ID, you have an additional year to get one before you probably need it to board a domestic flight. — NPR

Doctor: Here’s the safe way to unload your groceries amid COVID-19 pandemic (video) — Dr. Jeffrey VanWingen is a family physician at Spectrum Health. — KHOU – Houston

How to make sure you’re not paying for gym services you’re not getting — Texas Governor Greg Abbott ordered all gyms and fitness centers to close last week, but you may have noticed your membership fee being auto-drafted from your bank account. — KPRC – Houston

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

Office of Court Administration announces travel authorization for Texas attorneys and staff under stay-at-home orders

Thu, 03/26/2020 - 18:25

Texas lawyers should lead by example with telework, alternatives to in-person meetings, and social distancing but also must be permitted to practice law free from local stay-at-home orders, according to the Office of Court Administration, as it acknowledged that the need for legal services only increases in a disaster like the COVID-19 pandemic.

“Lawyers and staff may travel and engage in activities reasonably necessary to provide legal services, as is permitted for other essential services,” David Slayton, administrative director of the courts, said in a letter released Thursday. “Lawyers and staff may travel to and attend court proceedings, depositions, and meetings with clients and others. Stay-at-home and similar orders do not prohibit such travel and activities involved in the practice of law as long as every effort is made to avoid risks to the public health.”

Read the full letter here: Attorney Travel Authorization COVID-19

Also Thursday, the Office of Court Administration advised Texas attorneys that email service should be used, whenever feasible, as an additional or alternative method of service due to uncertainty regarding the feasibility of accessing documents delivered by mail, commercial delivery service, fax, or similar methods during the COVID-19 pandemic. Courts are also advised to use email as an additional or alternative method of notifying parties of orders, judgments, and the like, when possible.

State Bar issues election update, messages from candidates

Thu, 03/26/2020 - 18:04

Editor’s Note: State Bar of Texas President Randy Sorrels and Executive Director Trey Apffel issued the following message to members on Thursday. It includes links to new messages from president-elect candidates Pablo Almaguer and Sylvia Borunda Firth.

We’re writing to share the latest messages from State Bar president-elect candidates Pablo Almaguer and Sylvia Borunda Firth and to ensure you are aware of an important change to the 2020 State Bar elections. (Scroll down to read the candidates’ messages.)

The State Bar of Texas and Texas Young Lawyers Association elections will proceed starting April 1. However, voting will be online only due to uncertainty regarding the ability of the State Bar’s election vendor to receive and process paper ballots during the COVID-19 pandemic. To ensure Texas lawyers have ample time to vote, the Nominations and Elections Subcommittee of the State Bar Board of Directors agreed to extend the voting period by one month, until May 29. The Supreme Court signed an order to implement this change.

Although we face challenging days, we believe it is important to continue the self-governance of the bar. By electing the president-elect and district directors, Texas lawyers can exercise their right to self-governance and ensure the board of directors continues to fulfill the bar’s mission and statutory purposes.

In an effort to encourage voter participation and educate members on the president-elect candidates’ platforms, the State Bar is distributing messages submitted by the candidates addressing topics of their choosing. Their latest messages are available at the links below.

Note: Opinions expressed by the candidates do not necessarily reflect the views of the State Bar of Texas.

Pablo Almaguer
Edinburg

Sylvia Borunda Firth 
El Paso Click here to read Pablo Almaguer’s message.  Click here to read Sylvia Borunda Firth’s message. 

On April 1, attorneys eligible to vote will be mailed an election packet that includes candidate brochures, and instructions on how to cast their vote online. An email also will be sent to attorneys with instructions on how to vote online. Be sure to check your spam filter. Election emails are sent by the State Bar’s election provider, Election Services Corporation, from statebaroftexas@electionservicescorp.com.

The election packet and email will contain a voter authorization number (VAN) with instructions on how to vote online. Attorneys may use this VAN and their bar card number to log on to the election website to cast their ballot. If attorneys do not have their VAN, they can also go to the State Bar website, texasbar.com, to cast their vote during the voting period.

More information on the election is available at texasbar.com/election.

Please visit the State Bar of Texas’ coronavirus information page at texasbar.com/coronavirus for up-to-date information on guidance from the courts, Texas Supreme Court orders, helpful CLE webcasts, and other attorney resources. As always, please let us know if there are needs you think the State Bar can address within its statutory purposes.

Sincerely,

Randy Sorrels, President
randy.sorrels@texasbar.com
Trey Apffel, Executive Director
trey.apffel@texasbar.com

Coronavirus Legal News Briefing — March 26, 2020

Thu, 03/26/2020 - 11:11

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Stay Home – Stay Safe orders from around Texas — The State Bar of Texas has collected a list of cities and counties that have issued “Stay Home – Stay Safe” or shelter in place orders. — Texas Bar Blog

Stay-home orders don’t impact child custody plans, high court orders — Under Texas cities’ stay-home orders, ex-spouses who share child custody were confused about whether they could still take their child back and forth for visitations. The Texas Supreme Court has answered the question: Yes. (Subscription required) — Texas Lawyer

Eviction hearings postponed until mid-April due to COVID-19 — While filings can still be submitted, no trial, hearing, or other eviction proceeding may be conducted throughout Texas until after April 19. — KLTV – Tyler

As COVID-19 layoffs increase demand for legal aid, providers expect precipitous funding drop — Legal-aid groups are facing a triple whammy of being forced to work remotely from home like everyone else, expecting a major increase in demand for their civil legal-aid services, and having much less money to keep programs running. (Subscription required) — Texas Lawyer

Fears for civil rights mount amid fight against coronavirus — Growing segments of the U.S. population say state and federal governments are trampling on freedoms central to American life in the name of protecting public health. — The Associated Press

Commentary: How to run a successful immigration practice during COVID-19 — Irina Plumlee is a shareholder at Munsch Hardt Kopf & Harr’s Dallas office and head of the firm’s immigration practice. (Subscription required) — Texas Lawyer

Houston law school’s Hurricane Harvey preparation led to quick coronavirus response — While many colleges were still in decision mode or preparing for their next steps in response to coronavirus, South Texas College of Law Houston already had a plan. (Subscription required) — Houston Chronicle

State disaster declaration green-lights small-business loans — Economic Injury Disaster Loans, known as EIDL, offer up to $2 million per business at an interest rate of 3.75 percent for businesses which are unable to secure credit elsewhere. — Valley Morning Star

Texas Workforce Commission says it will ‘help everyone that needs help’ with unemployment benefits — The Texas Workforce Commission got 7 times their usual number of calls Sunday. — KUT – Austin

Abortion providers sue Texas over coronavirus-related order — Attorney General Ken Paxton said this week that abortions should not be performed unless the mother’s life is in danger, saying health care capacity needs to be preserved for COVID-19 patients. — The Texas Tribune

Coronavirus is officially in Texas prisons and jails. Now what? — The Texas prison system and Dallas County both reported the first Texas cases of inmates testing positive for the new coronavirus this week. Self-quarantines and social distancing aren’t always possible for those who’ve been exposed. — The Texas Tribune

SE Texas judges to limit stores to one adult per household — The five counties that are a part of the Southeast Texas Regional Emergency Operations Center will not issue a “Stay at Home” order. — Beaumont Enterprise

Those who intentionally spread coronavirus could be charged as terrorists — The Justice Department offers guidance on how to deal with “purposeful exposure and infection of others.” — Politico

Senate passes $2 trillion coronavirus relief package — The U.S. Senate passed a $2 trillion relief measure Wednesday night intended to help hospitals, workers and businesses hit hard by the rapidly spreading virus. — NPR

In coronavirus fight, governors are doing their own thing — Many of the decisions on how to reduce the spread are being left to America’s governors — a cast of characters as unique as all 50 states. — Austin American-Statesman

Trump administration urged to free migrants as virus surges — An ACLU lawyer has warned that if the virus spreads through a facility the number of sick people who would require advanced care could overwhelm nearby hospitals. — The Associated Press

Judge slams emergency motion to halt knockoff unicorn art amid coronavirus pandemic — A federal judge in Chicago had no patience for a lawyer who sought a quick hearing on his client’s bid for a temporary restraining order to halt the sale of knockoff uniform art. — ABA Journal

Subscribe

To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

State Bar Law-Related Education launches new resource for Texas students

Thu, 03/26/2020 - 10:52

The State Bar of Texas Law-Related Education (LRE) department has released a new video series resource “Texas Civics: A Student’s Guide” to all Texas educators and students.

The videos highlight the Texas judicial, legislative, and executive branches and explain through easy-to-understand graphics how each branch works. The three videos are ready for view at texaslre.org.

Additional videos will be added to show comparisons of each branch of government at the national and local levels. When production is complete, all videos will be closed captioned and provided in Spanish. The department is also creating guides to be used after viewing to assess student learning from watching the videos. For more information on these resources, please complete this form.

This project is made possible through funds from the Texas Bar Foundation.

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